Fitzgerald v. Sherman

Sears, J.: The plaintiff has recovered judgment for the conversion of certain buildings which stood upon a parcel of land in the city of Utica which the plaintiff had conveyed to the defendant. The transaction relating to the purchase and sale of this property was conducted through a real estate broker named Hone, and the plaintiff’s claim is founded upon an agreement which he made with Hone of which a memorandum was made by Hone as follows: [53] “ Fred S. Hone “ Real Estate Agent “ City National Bank Building, “ Utica, New York, January 5, 1920. " Patrick T. Fitzgerald is to have the old Buildings, when they are to be torn down, on the Elizabeth St. Property, sold to Sherrill Sherman. FRED S. HONE, “ Agent.” To sustain the judgment, the evidence must show that Hone had authority to make this arrangement for the defendant. The transactions relating to the sale of the property were these: Hone being in the real estate business, heard that the defendant was looking for certain property to buy for an automobile station; he met the plaintiff on the street and asked him whether he would sell the property on which the buildings stood. Receiving an affirmative answer to this inquiry, Hone had one or more further interviews with the plaintiff. In the course of these, the plaintiff stated that he held the property for $15,000 and Hone suggested that he ask $15,500 for the property so that Hone could have a $500 commission out of the purchase price. So far, nothing was said about the plaintiff reserving the buildings. Hone also had interviews with the defendant in the course of which Hone communicated to the defendant the fact that the plaintiff would sell the property for $15,500 and defendant told Hone that he would purchase the property in question. After this Hone communicated to the plaintiff the fact that the defendant would purchase the property at the price mentioned, and Hone himself advanced out of his own funds $100 which he paid to the plaintiff bn account of the purchase price. The arrangement in respect to the buildings referred to above, of which the written memorandum was made, was arrived at in the course of an interview between the plaintiff and Hone which Hone says was subsequent to the time that the deposit was made and sale agreed upon. The plaintiff himself testifies that he is unable to say whether this paper was signed and the arrangement made on the same day that he received the first payment or not. A few days later the parties met in Hone’s office and a deed of the property was executed by the plaintiff and delivered to the defendant. The deed contained no reservation of the buildings, and it was not until months afterwards that the defendant learned of the promise made by Hone. This knowledge came to him when the plaintiff demanded possession of the buildings, and the defendant thereupon told the plaintiff that his demand was the first intimation he had had of any claim of the plaintiff in respect to [54] them. The defendant refused to allow the plaintiff to have the buildings, having already sold them to third parties. These circumstances fall far short of establishing authority on the part of Hone to bind. the defendant by any stipulation or reservation relating to the buildings. Hone was a real estate agent, a real estate broker. No act or word of the defendant came to the knowledge of the plaintiff as to the character of any agency of Hone for the defendant, except from the statement and acts of Hone himself. No statement or act of Hone, as the court correctly charged, could broaden the scope of the authority which he had actually received. (Edwards v. Dooley, 120 N. Y. 540.) The only authority he had received from the defendant, if in fact he had received any at all, was to act as an ordinary real estate broker in the purchase of this particular property from the plaintiff. That is, to bring the'minds of the parties together and transmit from each to the other their respective offers. Such authority implies no power to enter into a contract on behalf of the broker’s principal. (Rowland v. Hall, 121 App. Div. 459; Rowan v. Hyatt, 45 N. Y. 138.) The promise of Hone in respect to the buildings was, therefore, unauthorized when made and without effect so far as the • defendant was concerned. The acceptance of the deed and the payment of the money was all that was done by the defendant after this. When the deed was passed, the defendant was still without knowledge of Hone’s arrangement with the plaintiff concerning the buildings. Without knowledge there can be no ratification. (Rowan v. Hyatt, supra; Central City Savings Bank v. Walker, 66 N. Y. 424; Dunning v. County of Orange, 139 App. Div. 249; affd., 204 N. Y. 647.) The proof that Hone acted for the defendant in the purchase of other parcels was not probative of any authority as to this transaction, and was erroneously received. (Gubelman v. Koch, Inc., 234 N. Y. 425.) The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. . All concur, except Davis, J., who dissents in an opinion.